Attorney-General s Department

Transcription

1

2 Attorney-General s Department

3 14 September 2006 His Excellency Grand Chief Sir Paulias Matane GCL, GCMG, KStJ, KT, CMG, OBE Governor-General of Papua New Guinea Government House PORT MORESBY Your Excellency, In accordance with Section 19 of the Organic Law on Certain Constitutional Office-Holders, I have the honour to submit to you for presentation to the National Parliament the Annual Report of the Public Prosecutor. Yours sincerely, CHRONOX MANEK Public Prosecutor 3

4 OFFICE OF THE PUBLIC PROSECUTOR VISION. MISSION To deliver timely, independent, fair, efficient and effective prosecution and related services to the people of Papua New Guinea. CORE VALUES & PRINCIPLES Independence To make decisions independently of investigating agencies and the government, according to the Constitution. Fairness & Equality To exercise all duties and responsibilities without fear or favour. All persons are equal before the law. All decisions will be impartial, based on an independent assessment of the available evidence and the public interest, in accordance with the Prosecution Policy of the Office. Transparency & Accountability To ensure transparency and accountability in the provision of prosecution and related services. Excellence To strive for excellence in the provision of prosecution services in accordance with its core values and principles, in an efficient and timely manner, so as to promote justice for victims, witnesses, accused persons and the public. 4

5 CONTENTS... page 1. OFFICE OF THE PUBLIC PROSECUTOR EXECUTIVE SUMMARY OF THE PUBLIC PROSECUTOR HEAD AND REGIONAL OFFICE REPORTS SIGNIFICANT MATTERS ACHIEVEMENTS NEW FUNCTIONS FINANCIAL REPORT HEAD AND REGIONAL OFFICE LOCATIONS AND CONTACT DETAILS

6 1 OFFICE OF THE PUBLIC PROSECUTOR PUBLIC PROSECUTOR STATE PROSECUTORS Joseph Waine (Mt Hagen) Raphael Luman (Port Moresby) Tracy Ganaii (Port Moresby) LEGAL OFFICERS Rod Gankarch (Lae) Sheila Ruben (Port Moresby) Timothy Ai (Port Moresby) Joel Done (Lae) Chronox Manek LLB UPNG 2001 to 2007 Public Prosecutor 1999 to 2001 Public Solicitor 1994 to 1999 Acting Deputy Public Prosecutor 1992 to 1994 Senior State Prosecutor 1989 to 1992 State Prosecutor 1987 to 1989 Legal Officer DEPUTY PUBLIC PROSECUTOR Ravunama Auka LLB UPNG 1993 to 2006 Deputy Public Prosecutor 1987 to 1992 Senior State Prosecutor 1983 To 1986 State Prosecutor 1981 to 1982 Legal Officer DEPUTY PUBLIC PROSECUTOR Jack Pambel LLB UPNG 2001 to 2006 Deputy Public Prosecutor 1994 to 2001 Senior State Prosecutor 1992 to 1994 State Prosecutor 1989 to 1992 Legal Officer SENIOR STATE PROSECUTORS Nicholas Miviri (Lae) Camillus Sambua (Port Moresby) Joseph Kesan (Mt Hagen) Jim Wala Tamate (Madang) Kathwa Umpake (Goroka) Pondros Kaluwin (Port Moresby) Lukara Rangan (Kokopo) Daniel Mark (Port Moresby) Steven Kesno (Wabag) Francis Popeiu (Kimbe) Mary-Anne Zurenuoc (Port Moresby) Anthony Kupmain (Port Moresby) Michael Ruarri (Madang) Peter Kelly (ECP, Port Moresby) Teresa Berrigan (ECP, Port Moresby) Andrew Hicks (ECP, Port Moresby) Martin Corkery (ECP, Port Moresby) ADMINISTRATIVE STAFF Office Manager, Zachary Sitban (Port Moresby) Case Management Administrator, Francesca Tamate (Port Moresby) Administrative Officer, Margaret Buakia (Port Moresby) Secretary, Dorothy Kakot (Port Moresby) Secretary, Dinah Yanzinga (Lae) Secretary, Agnes Kerua (Mt Hagen) Secretary, Marianne Soni (Madang) Secretary, Margaret Sabumei (Goroka) Information Management Officer, Jacob Maki (Mt Hagen) Information Management Officer, Paul Gerowa (Goroka) Information Management Officer, Alice Limu (Lae) Information Management Officer, Samuel Wonkau (Madang) Information Management Officer, Joanne Marampau (Kokopo) Information Management Officer, Germaine Miro (Port Moresby) Driver, David John (Port Moresby) Driver, Brian Boire (Port Moresby) Cleaner/Assistant, Simon Agafio (Lae) Casual, Roslyne Koliadi (Port Moresby) Casual, Grace Aipit (Port Moresby) 6

7 2 EXECUTIVE SUMMARY OF THE PUBLIC PROSECUTOR First Annual Report Since 1987 The production of an Annual Report is a Constitutional requirement and forms an important part of the system of democracy in demonstrating openness and accountability to the people of Papua New Guinea. This Office has not produced an Annual Report for several years since During the period 2001 to 2004 (the period of my appointment) brief reports have been produced and processed through the office of the Minister for Justice for consumption by Parliament. Various inhibiting factors that stood in the way of producing Annual Reports included the necessary resources to gather data and process raw materials into the expected format to produce the report. We are still working on ways to resolve some of these factors. Powers and Functions of the Public Prosecutor The Office of the Public Prosecutor is a creature of the Constitution (S 176) and, in summary, is empowered by the Constitution (S 177) and the Public Prosecutor (Office & Functions) Act (S 4) to perform the following functions: (a) control the exercise and performance of the prosecution function of the State (including appeals, the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court, National Court and all other courts established by law; (b) discharge the leadership code prosecution function before lead ership tribunals established under the Organic Law on the Duties and Re sponsibilities of Leadership (OLDRL); (c) exercise the discretion to grant im munity from prosecution with or without condition to any person in relation to any offence with which he is charged; and (d) advise the State or any statutory authority or instrumentality of the State, the Minister, the Secretary for Justice, the State Solicitor, the Law Reform Commission and any other person or body as required by law. In the performance of these duties the Public Prosecutor is not subject to any direction or control by any person or authority except in the following two instances: (a) the head of State acting with and 7

8 in accordance with the advice of the or otherwise refers to the indepen Cost-Effective Separation of the Office National Executive Council (NEC), dence of a person or an institution, from the Attorney-General s Department may give direction to the Public Pros that provision does not affect; ecutor on any matter that might The responsibilities and powers of the Office of prejudice the security, defence or i) control or direction by a court; the Public Prosecutor under the Constitution international relations of Papua New are enormous and demanding. However Guinea. ii) the regulation, by or under a the practical reality of having this important Constitutional law or an Act of public institution to be operating as a branch However, in such cases, the Prime Parliament, of the exercise or within the Department of Justice and Attorney Minister must table the direction in performance of the powers, General is a far cry from what was intended the National Parliament at the next functions, duties or responsibili by the Constitutional Planning Committee sitting of the Parliament after the di ties of the person or institution; when all other constitutional offices are rection is given, unless after consul or independently funded and operating such tation with the leader of the opposition, as the Electoral Commission, Ombudsman he considers its tabling is likely to iii) the exercise of jurisdiction under Commission and Auditor General s Office. prejudice the security, defence or Division III.2 (leadership code), international relations of Papua New Subdivision VIII.1.B (the Audi To date this important public institution has Guinea; tor-general), or Subdivision been compromised by the governmental VIII.1.C (the Public Accounts process and system by providing inadequate (b) when it falls under the general Committee) manpower and resources to properly and exceptions provided by Schedule professionally perform its function and yet the 1.19 of the Constitution which state and does not constitute an appro demand to deliver quality prosecution is very that where a Constitutional law priation of, or authority to expend, funds. high. provides that a person or institution is not subject to control or direction, I have commissioned, with the support of the Attorney-General s Department, an inquiry into the cost-effective separation of this Office from the Attorney-General s Department, to be conducted in 2006 by Sir Robert Woods, formerly Justice Woods of the Supreme Court. 8

9 Developments & Achievements in 2005 The year 2005 has seen many good and positive achievements for the Office of which the production of this Annual Report is but one. The report will canvass the work of officers and staff in many cases with limited resources both in terms of staff, office equipment and legal tools. It reflects the notion do with what you ve got but coming from the hearts of the 2005 prosecution team. The 2005 prosecution team were boosted with the inclusion of 4 Australian prosecutors in March 2005, under the Enhanced Cooperation Programme (ECP) between the governments of Papua New Guinea and Australia only to be almost shot down by the Wenge Supreme Court Reference. Pending resolution of the ECP the prosecutors did not appear in court in However, this did not dampen their spirit and they continue to assist in many initiatives undertaken that form part of this report. We continue to enjoy high quality prosecutorial partnership. The number of cases dealt with in 2005 were significant including the successful prosecutions of one Iori Veraga for Misappropriation (NPF matter), Governor Yali for Rape, and the prosecution of four police officers for the murder of a school student in Mt Hagen. The last case involved the officer in charge of the Mt Hagen Branch of the Office of the Public Prosecutor as a key prosecution witness which subsequently led to him being threatened and almost attacked by friends and relatives of the accused upon their conviction and sentence of life imprisonment. This scenario is a common occurrence as far as security of officers and staff of the Office of the Public Prosecutor are concerned in relation to their role in discharging the prosecutorial function for the people of Papua New Guinea. This office is never guaranteed any security for its officers, staff, family members or its facilities and infrastructure. 9

10 In addition to the above matters the Office continues to exercise its leadership function under the Constitution. Currently, there are 22 leaders which have been referred by the Ombudsman Commission for possible prosecution before the appropriate leadership tribunals. These matters are being prepared for processing soon. The various ongoing initiatives undertaken in 2005 will be continued in 2006 and beyond to uplift the image of the office and service delivery to the people of Papua New Guinea. The Office of the Public Prosecutor is taking off for higher ground and your assistance will be a boost. The year 2005 also saw the Office of the Public Prosecutor given additional power and responsibility following the enactment of the Proceeds of Crime Act, Extradition Act and the Mutual Assistance in Criminal Matters Act. This added responsibility will require additional manpower and related resources for effective supervision and implementation of the legislations. I take this opportunity to thank my officers and staff for their tireless efforts in processing the prosecution function of the Independent State of Papua New Guinea in the appalling conditions both in terms of infrastructure, security and welfare. CHRONOX MANEK Public Prosecutor 10

11 HEAD AND REGIONAL OFFICE REPORTS Introductory Note The statistics below are incomplete. Work is underway to standardise the recording and compilation of statistics across all branches of the Office. Further, the figures do not include matters assessed by this Office for ex officio indictment or election to proceed summarily in the case of certain indictable offences. The Office also appears from time to time in District Court Appeals. SUPREME COURT Criminal Appeals (SCRA) and Reviews (SCREV) 2005 Case Type Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov Dec Tot SCRA SCREV Total

12 Criminal Appeals (SCRA) and Reviews (SCREV) 2005 by Grounds Grounds Jan Feb Mar Apr May Jun Jul Aug Sept Oct Nov Dec Tot Against conviction Conviction & Sentence Sentence Criminal 4 4 Total NATIONAL COURT WAIGANI Year No of Cases Referred to the Office Following Committal

13 LAE February to October 2005 Month Cases Completed Feb 9 March 13 April 14 (trials 10, pleas 3, declarations 1) May 13 (trials 9, pleas 3, declarations 1) June 17 (trials 8, pleas 8, nolle 1) July 14 (trials 7, pleas 7) August 14 (trials 6, pleas 8) September 26 (trials 10, pleas 14, declarations 2) October 19 WABAG November 2004 to September 2005 Month Cases Completed Nov 04 to Sept

14 KIMBE February to November 2005 Month Cases Completed Feb (Kimbe) 8 (trials 1, pleas 9) March (Kimbe) 5 (trials 1, pleas 4) April (Kimbe) 11 (trials 3, pleas 7) May (Buka) 10 (trials 1, pleas 8, declarations 1) June (Kokopo) 1 (trials 1) July (Kimbe) 8 (trials 1, pleas 7) August (Kimbe/Bialla) 9 (trials 3, pleas 6) September (Buka) 12 (trials 1, pleas 9, nolles 2) October (Mt Hagen) NA November (Buka) 3 (trials 1, pleas 2) KOKOPO October to December 2005 Month Cases Completed MADANG Not Available October 4 (trials 1, pleas 3) November 12 (trials 2, pleas 9, no evidence 1) GOROKA Not Available MT HAGEN Not Available December 11 (trials 2, pleas 9) 14

15 3 SIGNIFICANT MATTERS This was another busy year for the Office. Amongst the many trials run this year we also saw the successful conduct of several significant matters, including: State v James Yali This concerned the trial of the Governor of Madang, James Yali for the sexual assault of a minor. The trial was vigorously defended over 3 weeks. Mr Yali was found guilty of sexual penetration without consent. Leadership Matters There are currently 22 matters referred to this Office by the Ombudsman Commission for possible prosecution before appropriate Leadership Tribunals. They include political leaders, heads of departments and statutory bodies and Constitutional Office-holders. Matters relating to Constitutional Officeholders will not be processed as yet until an opinion is sought from the Supreme Court in April 2006 on certain Constitutional provisions. Mr Yali was sentenced early this year to 12 years imprisonment. He has appealed against both conviction and sentence. State v Iori Veraga This matter follows the inquiry into the collapse of NPF. Mr Veraga was tried and found guilty of conspiring with others, including senior executives of NPF, to defraud NPF of K60,300 and K175,000, by fraudulently charging valuation fees that were excessive. Mr Veraga was sentenced on 17 June 2005 to a total of 6 years. He has appealed against conviction and sentence. This Office has appealed against sentence. Several others have been committed to stand trial in the National Court including Jimmy Maladina and those that will be processed through the exercise of my ex-officio powers after non-committal by the committal court are pending a Supreme Court decision brought by Herman Leahy. 15

16 Leadership Tribunals have not been adequately catered for under the current budget. Some of these cases need witnesses that require us to fly them in and provide accommodation and security. On other occasions the tribunal will be requested to conduct its inquiries within the leader s electorate, which will require prosecutors and investigators to travel. Therefore consideration should be given to increasing the budget for this purpose and for security. Amendments to the Criminal Code & Evidence Act Amendments to the Criminal Code and Evidence Act were passed in April In 2005 this Office asked the Court in a number of cases to utilise the amendments to allow sexual assault victims to give evidence with the benefit of a screen so as not to be intimidated by the accused, or with the benefit of a relative in the court room. In addition the prosecution has submitted victim impact statements to the court on sentence. The Office has also conducted two successful workshops on the amendments in Port Moresby and Kokopo and will facilitate two more in Goroka and Lae. 16

17 4 ACHIEVEMENTS In addition to conducting our bread and butter work of prosecutions my officers also worked hard outside the court room to improve themselves. In August 2005 I attended and participated in the International Association of Prosecutors World Conference in Copenhagen, Denmark. I was honoured to be elected as one of three Vice Presidents at this conference and chaired several panel discussions. Following the conference I participated in the Heads of Commonwealth Prosecutors meeting in Belfast and Dublin. Apart from all other important issues affecting prosecution offices in the Commonwealth, I agreed with the Directors of Public Prosecutions in New South Wales and the Northern Territory, upon request by the Public Prosecutor of the Solomon Islands, to facilitate the attachment of his Deputy for training in both professional and managerial aspects. The Deputy Director of Public Prosecutions in Solomon Islands, Ronald Talasasa, was subsequently attached to our office for 2 weeks. A Senior State Prosecutor, Steven Kesno, Officer-in-Charge Wabag, attended the Australian Association of Crown Prosecutors Conference in Canberra in June The conference discussed various aspects that affect prosecutors and the criminal justice process. Two working prosecutors from my office participated at a week long regional workshop on money-laundering and proceeds of crime in Fiji in November Upon their return they imparted what was learnt to other prosecutors at the in-house Continuing Legal Education Programme in November. Two senior members of my Office, Nicholas Miviri (Officer-in-Charge of Lae) and Joseph Kesan (Officer-in-Charge of Mt Hagen), were fortunate enough to participate in the first ever organised Executive Leadership Training Course co-ordinated by PATTAF for the Law & Justice Sector Program. It involved coaching by eminent senior citizens including the former Chief Justice of Papua New Guinea, Sir Arnold Amet, and other internationally recognised academics and commentators including the Chief Ombudsman, Ila Geno, Chief Magistrate, John Numapo, and myself. In addition in 2005 for the first time the Office of the Public Prosecutor in collaboration with the Law & Justice Sector Program and 17

18 the Victorian Bar of Australia organised an Advanced Appellate Advocacy Programme that saw Senior State Prosecutors and other senior lawyers from the Department of Justice & Attorney-General being put through intensive one week training. In 2005 this Office continued its participation in the Court Users Forums, both here in Port Moresby and in the provinces. This forum enables all parties in the criminal justice process chain to come together and discuss common practical issues affecting the day to day business of each institution from arrest to final disposition of criminal matters. The response has been very good hence the engagement of the civil society and community leaders including presidents of local level governments and members of the provincial governments. It is envisaged that this forum will be introduced to every other province that has a resident judge on the ground to co-ordinate and administer its work. I was lucky to have four Australian prosecutors join the Office in 2005 under the Enhanced Cooperation Programme (ECP). The prosecutors work for the Office of the Public Prosecutor in Papua New Guinea but their costs are met by the Australian Government. The prosecutors assisted me with the conduct of the sexual assault workshops in Waigani and Kokopo. In addition with their assistance we have seen the introduction of a number of training programmes, including: The production of Schedules of Comparative Sentences for homicide, sexual assault, robbery and misap propriation offences. The use of these schedules has been received favourably by the Court in a number of cases. The establishment of an in-house Continuing Legal Education (CLE) programme in which training ses sions are conducted at the end of every month with legal officers in Waigani. The sessions are conducted by lawyers from within the office. Materials are sent out to the prov inces and it is envisaged that sessions will be conducted in the provinces in The production of the 2nd Edition of the Prosecution Manual in a revised 18

19 format to enable its regular update, including the incorporation of CLE materials. The drafting of a Prosecution Policy, to be published this year. The drafting of a Leadership Manual. The drafting of a manual in relation to the new functions imposed under the Proceeds of Crimes Act, the Mutual Assistance in Criminal Mat ters Act and the Extradition Act. These programmes will be co-ordinated in 2006 by the Legal Training Committee within the Office. In addition, we are working well together in relation to the management of the Office. For example, following the meeting of Branch Heads in Goroka in September, we have seen the introduction of a programme requiring the preparation of standard monthly reports by the Officers-in-Charge in Waigani and the Branch Heads in the regions. The reports provide valuable information regarding the number of cases processed around the country and the resources needed to provide our service. In this regard we have been trialling a revised case management system in Waigani will see a similar review process in the regional offices. This Office has also been assisted by the Law & Justice Sector Program which is funding renovations to the Office in Waigani and the provision of legal resources. In this regard I was assisted by the Law & Justice Sector Program with the provision of 19

20 a sexual offence advisor in Therese McCarthy in conducting, with my ECP prosecutors, workshops in Port Moresby and Kokopo in relation to the amendments to the Criminal Code and Evidence Act concerning sexual offences. This was important in that it affected the vulnerable members of the community in the form of women and children and the continued abuse of them that has been prevalent in the recent past. This Office also participated in the Attorney- General s Department Independence Day Celebrations at which several of my staff and I were recognised for long service to the Office and a merit award was given to me. My staff also won the singing competition in true prosecutors style! We hope to build on all these achievements in 2006 and improve our performance in the delivery of services to the people of Papua New Guinea. With the inquiry into the cost-effective separation of the Office to commence in April 2006 we are hopeful that the Government of Papua New Guinea will assist us in accordance with the recommendations of the inquiry that will enable us to have the necessary resources we need to provide the best prosecution service to the people of Papua New Guinea. 20

21 5 NEW FUNCTIONS In 2005 Parliament passed a package of 3 Acts that give the Public Prosecutor new powers and functions. These Acts are the Proceeds of Crime Act, the Extradition Act and the Mutual Assistance in Criminal Matters Act. The Acts came into effect on 1 March Proceeds of Crime Act The Proceeds of Crime Act is designed to deprive criminals of the benefits of their crimes and to attack money-laundering in its broadest sense. To achieve this, the Act provides a comprehensive scheme to trace, restrain and confiscate the assets derived by criminals from those unlawful activities. Under the Act, there are 2 streams of confiscation action: a conviction-based stream which is similar to that adopted elsewhere in the world and a civil-based stream under which forfeiture will occur where it can be established on the balance of probabilities that the property is the proceeds of crime. The Public Prosecutor will be responsible for taking action under the Act to restrain property in the first instance and then apply for the forfeiture of the property under either the conviction-based or civil-based stream. to permit extradition generally subject to a discretion in the Minister to refuse extradition on specified grounds. The Public Prosecutor is required under the Act to appear on behalf of the requesting country in all applications seeking the surrender of a person from Papua New Guinea. Mutual Assistance in Criminal Matter Act Finally, the Mutual Assistance in Criminal Matters Act is designed to enable Papua New Guinea to give assistance to foreign countries in relation to criminal investigations being conducted in those countries. This may take the form of executing search warrants in Papua New Guinea seeking evidence in relation to an offence committed in a foreign country, arranging for witnesses to produce documents to, or give evidence in, a court in Papua New Guinea relating to a foreign offence, or providing assistance to the foreign country in relation to the enforcement of a proceeds of crime order made in the foreign country. The Extradition Act The Extradition Act modernises and simplifies extradition law in PNG. In relation to Pacific Island Forum countries, the Act recognises that there is a need for a simplified system of extradition for island countries that share common borders. Extradition between these countries will only require a process referred to as the backing of warrants. A more formal process will be required for extradition to other countries. The legislation is designed Act provides that certain applications under the Act are to be made by the Public Prosecutor. These new powers and functions will inevitably have an impact on the resources of the office and consideration will need to be given to increasing the staffing levels of the office to effectively carry out these functions. 21

22 6 FINANCIAL REPORT To provide effective, independent, impartial, efficient and timely prosecution and related services to the State, the Office of The Public Prosecutor must be properly funded. The financial report summarizes the budget allocation that was given to the Office of the Public Prosecutor in the last three year period and gives reasons why there is a need for increase budget allocation. Below are the budgets allocated for the Office of The Public Prosecutor. Year Original Revised Actual Budget Budget Spent ,305, ,292,200 2,114, ,192, ,767,000 2,766, ,485, NA NA 22

23 Under the recurrent budget total allocation for 2006 financial year stands at K2, 485,400 a reduction by K167, out of K2,652,700 on total budget estimates submitted. The amount allocated for 2006 was insufficient to cater for the following: 1. Travel 2. Utilities 3. Office materials 4. General Stationary 5. Transport & Fuel 6. Routine Maintenance 7. Renovations 8. Office Furniture & Equipment 9. Other Operational Expenses Some of the activities that are not funded by the recurrent budget are now supported by the Law & Justice Sector Program and our development partner AusAID: Name Activity Activity Activity of Project Number Description Budget Improve Managements Enhance Courts & in Public Prosecutors Office/Case Commissions Systems 50,000 Management System and processes Access to Legal Information 20, Fraud & Corruption Initiatives 500, Facilities & Assets Management 360,000 Total Allocation 930,000 Successive governments both past and present view the Office of the Public Prosecutor as just another branch within the Department of Justice & Attorney General, hence providing inadequate budget allocation which resulted in the office being unable to implement all its planned activities and achieve its goals. 23

24 7 HEAD AND REGIONAL OFFICES CONTACT DETAILS Head Office, Port Moresby Address: Level 4, TISA Investment Haus PO Box 662 Waigani National Capital District T: F: Kimbe Address: PO Box 280 Kimbe West New Britain Province T: F: Lae Address: PO Box 2185 Lae Morobe Province T: F: Goroka Address: PO Box 977 Goroka Eastern Highlands Province T: F: Madang Address: PO Box 868 Madang Madang Province T: F: Mt Hagen Address: PO Box 1203 Mt Hagen Western Highlands Province T: F: Kokopo Address: PO Box 407 Kokopo East New Britain Province T: F: Wabag Address: PO Box 289 Wabag Enga Province T: F:

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